[Federal Register Volume 73, Number 241 (Monday, December 15, 2008)]
[Proposed Rules]
[Pages 75983-75986]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-29386]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 72, 73, 74, 77, and 78
[EPA-HQ-OAR-2008-0774; FRL-8750-7
RIN 2060-AP35
Rulemaking To Reaffirm the Promulgation of Revisions of the Acid
Rain Program Rules
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: EPA is proposing to reaffirm the promulgation of certain
revisions of the Acid Rain Program rules in order to prevent disruption
of the program, which has achieved significant, cost-effective
reductions in sulfur dioxide (SO2) emissions from utility
sources since its commencement in 1995. These rule revisions were
finalized in the Federal Register notices that also finalized the Clean
Air Interstate Rule (CAIR) and the final Federal Implementation Plans
for CAIR (CAIR FIPs). The U.S. Court of Appeals for the District of
Columbia Circuit recently issued a decision vacating and remanding CAIR
and the CAIR FIPs. EPA and other parties have petitioned for rehearing,
and the Court has not yet issued a mandate in the case. These revisions
to the Acid Rain Program rules were not addressed by, or involved in
any of the issues raised by, any parties in the proceeding or the
Court. EPA believes it is reasonable to view these revisions as
unaffected by the Court's decision. However, EPA is proposing to
reaffirm--pursuant to its authority under Title IV of the Clean Air Act
(CAA) and CAA section 301--the promulgation of these revisions in order
to remove any uncertainty about their regulatory status because they
have been in effect since mid-2006, most of them are crucial to the
ongoing operation of the Acid Rain Program, and the rest of them
streamline and clarify requirements of the program.
DATES: Written comments must be received by January 29, 2009. Any
request for a public hearing must be made by telephone or by e-mail to
the person in the FOR FURTHER INFORMATION CONTACT section of this
preamble by December 22, 2008. If such a telephone or e-mail request
for a public hearing is received by that date, a public hearing will be
held on December 30, 2008 in Washington, DC. For additional information
on a public hearing and comments, see the ADDRESSES and SUPPLEMENTARY
INFORMATION sections of this preamble.
ADDRESSES: Submit any comments, identified by Docket ID EPA-HQ-OAR-
2008-0774 (which incorporates by reference the dockets for CAIR and the
CAIR FIPs, i.e., Docket ID Nos. EPA-HQ-OAR-2003-0053 and EPA-HQ-OAR-
2004-0076), by mail to Air and Radiation Docket and Information Center,
U.S. Environmental Protection Agency, Mailcode: 2822T, 1200
Pennsylvania Ave., NW., Washington, DC 20460. Any comments may also be
submitted electronically or through hand delivery/courier by following
the detailed instructions in the ADDRESSES section of the direct final
rule located in the rules section of this Federal Register.
FOR FURTHER INFORMATION CONTACT: Dwight C. Alpern, Clean Air Markets
Division, U.S. Environmental Protection Agency, Clean Air Markets
Division, Mailcode: 6204J, Ariel Rios Building, 1200 Pennsylvania Ave.,
NW., Washington, DC 20460, telephone (202) 343-9151, e-mail at
[email protected]. Electronic copies of this document can be
accessed through the EPA Web site at: http://epa.gov/airmarkets.
SUPPLEMENTARY INFORMATION:
Regulated Entities. Entities regulated by this action primarily are
fossil fuel-fired boilers, turbines, and combined cycle units that
serve generators that produce electricity for sale or cogenerate
electricity for sale and steam. Regulated categories and entities
include:
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Examples of potentially regulated
Category NAICS code industries
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Industry................................ 221112 and others.......... Electric service providers.
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This table is not intended to be exhaustive, but rather to provide
a guide for readers regarding entities likely to be regulated by this
action. This table lists the types of entities, of which EPA is now
aware, that could potentially be regulated by this action. Other types
of entities not listed in this table could also be regulated. To
determine whether
[[Page 75984]]
your facility, company, business, organization, etc., is regulated by
this action, you should carefully examine the applicability provisions
in Sec. Sec. 72.6, 72.7, and 72.8 of title 40 of the Code of Federal
Regulations. If you have questions regarding the applicability of this
action to a particular entity, consult the person in the preceding FOR
FURTHER INFORMATION CONTACT section.
Administrative Procedures Used in This Action. This notice proposes
to reaffirm the promulgation of certain revisions, of the Acid Rain
Program rules, that were previously promulgated and have been in effect
since mid-2006 and to withdraw the interim final rule reaffirming the
promulgation of these same revisions. EPA is publishing at the same
time a direct final rule, reaffirming the promulgation of these
revisions of the Acid Rain Program rules and withdrawing the interim
final rule reaffirming the promulgation of these same revisions, in the
``Rules and Regulations'' section of this Federal Register because the
Agency views this as a noncontroversial action and anticipates no
adverse comment. EPA is also publishing at the same time the interim
final rule (referenced above), reaffirming the promulgation of these
revisions, in the ``Rules and Regulations'' section of this Federal
Register. The effectiveness of the interim final rule is immediate upon
the date of promulgation in the Federal Register and continues for 12
months from that date, unless the interim final rule is withdrawn on an
earlier date by the direct final rule or, if the direct final rule
itself is withdrawn, the final rule, addressing these rule revisions.
EPA has explained its reasons for this action in the preamble of
the direct final rule and, in more detail, in the preamble of the
interim final rule.
If EPA receives no adverse comment during the comment period, the
Agency will not take further action on this proposed rule. If EPA
receives any adverse comment during the comment period, the Agency will
publish a timely withdrawal of the direct final rule in the Federal
Register informing the public that the direct final rule is being
withdrawn and will not take effect and that the interim final rule is
not being withdrawn. EPA will address timely comments on the direct
final rule in any subsequent final rule based on this proposed rule.
EPA does not intend to institute a second comment period on this
action. Any parties interested in commenting must do so during the
comment period established in this notice.
Considerations in Preparing Comments for EPA. For information on
submitting Confidential Business Information and tips on preparing your
comments, see the SUPPLEMENTARY INFORMATION section of the direct final
rule located in the rules section of this Federal Register.
Public Hearing. If requested, EPA will hold a public hearing on
this proposed rule. EPA will hold a hearing only if the person in the
FOR FURTHER INFORMATION CONTACT section of this preamble receives by
telephone or e-mail by December 22, 2008 a request for a public hearing
in order to present oral testimony on this proposed rule. If a public
hearing is held on this proposed rule, the hearing will be held on
December 30, 2008. Any person who plans to attend the public hearing
should visit the EPA's Web site at http://epa.gov/airmarkets or contact
the person in the FOR FURTHER INFORMATION CONTACT section of this
preamble to learn if a hearing will be held and, if so, what will be
the location and time for the hearing. Because the hearing will be held
at a U.S. Government facility, everyone planning to attend should be
prepared to show valid picture identification to the security staff in
order to gain access to the meeting room.
The public hearing, if held, will be limited to comments on this
proposed rule. Each commenter's oral testimony will be limited to 5
minutes. EPA encourages commenters to provide written versions of their
oral testimonies either electronically (on computer disk or CD-ROM) or
in paper copy. The public hearing schedule, including the list of
speakers, will be posted on EPA's Web site at http://epa.gov/airmarkets. Verbatim transcripts and written statements will be
included in the rulemaking docket.
The public hearing, if held, will provide interested parties the
opportunity to present data, views, or arguments concerning this
proposed rule. EPA may ask clarifying questions during the oral
presentations, but will not respond to the presentations or comments at
that time. Any oral comments and supporting information presented at
the public hearing will be given the same weight as any other written
statements and supporting information submitted during the comment
period.
Outline. The following outline is provided to aid in locating
information in this preamble.
I. Acid Rain Rule Revisions Whose Promulgation Is Reaffirmed
II. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
G. Executive Order 13045: Protection of Children From
Environmental Health and Safety Risks
H. Executive Order 13211: Actions That Significantly Affect
Energy Supply, Distribution, or Use
I. National Technology Transfer Advancement Act
J. Executive Order 12898: Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations
I. Acid Rain Rule Revisions Whose Promulgation Is Reaffirmed
The Acid Rain Program rule revisions whose promulgation EPA
proposes to reaffirm in this notice are described in the preamble of
the direct final rule, and in more detail in the preamble of the
interim final rule, published in the Federal Register simultaneously
with this notice. The reasons why the rule revisions are appropriate
for the Acid Rain Program, why EPA maintains that it should remove any
uncertainty about the legal status of the rule revisions, and therefore
why EPA is issuing this proposed rule are also set forth in the
preambles of the direct final rule and the interim final rule. As
discussed above, EPA also proposes to withdraw the interim final rule
as of effective date of any final rule issued as a result of this
proposed rule.
II. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
This action is not a ``significant regulatory action'' under the
terms of Executive Order 12866 (58 FR 51735 (October 4, 1993)) and is
therefore not subject to review under the Executive Order. In this
action, EPA is simply proposing to reaffirm the promulgation of Acid
Rain Program rule revisions that were previously issued and are
currently in effect and have been since mid-2006.
B. Paperwork Reduction Act
This action does not impose any new information collection burden.
This rule simply reaffirms the promulgation of Acid Rain Program rule
revisions that were previously issued, does not change the existing
requirements in 40 CFR parts 72, 73, 74, 77, and 78, and thus does not
change the existing information collection burden. Moreover, EPA
maintains that the effect of these revisions when they were first
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promulgated was, if anything, to reduce somewhat the information
collection burden on regulated sources, e.g., by requiring compliance
with the allowance-holding requirement at a source, rather than unit,
level (thereby removing the need to transfer allowances among units at
the same source) and by making other changes to the rules in place when
the rule revisions were originally promulgated (such as removing the
requirement for submission of an annual compliance certification
report). However, the Office of Management and Budget (OMB) has
previously approved the information collection requirements in the
existing rules under the provisions of the Paperwork Reduction Act, 44
U.S.C. 3501, et seq., and has assigned OMB control number 2060-0258.
OMB control numbers for EPA's regulations in 40 CFR are listed in 40
CFR part 9.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (5 U.S.C. 601, et seq.) (RFA)
generally requires an agency to prepare a regulatory flexibility
analysis of any rule subject to notice and comment rulemaking
requirements under the Administrative Procedure Act or any other
statute unless the agency certifies that the rule will not have a
significant economic impact on a substantial number of small entities.
Small entities include small businesses, small organizations, and small
governmental jurisdictions. For purposes of assessing the impacts of
today's rule on small entities, small entity is defined as: (1) A small
business as defined by the SBA's regulations at 13 CFR 121.201; (2) a
small governmental jurisdiction that is a government of a city, county,
town, school district or special district with a population of less
than 50,000; and (3) a small organization that is any not-for-profit
enterprise which is independently owned and operated and is not
dominant in its field.
After considering the economic impacts of this proposed rule on
small entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities. In
determining whether a rule has a significant economic impact on small
entities, the impact of concern is any significant adverse economic
impact on small entities, since the primary purpose of the regulatory
flexibility analysis is to identify and address regulatory alternatives
``which minimize any significant economic impact of the rule on small
entities.'' 5 U.S.C. 603 and 604. Thus, an agency may certify that a
rule will not have a significant economic impact on a substantial
number of small entities if the rule relieves regulatory burden or
otherwise has a positive economic effect on all of the small entities
subject to the rule.
This rule does not change the existing Acid Rain Program rules and
thus the economic impact of those rules on small entities. The rule
simply proposes to reaffirm the promulgation of existing Acid Rain
Program rule revisions that have been in effect since mid-2006.
Moreover, the effect of these revisions when they were first
promulgated was, if anything, to reduce somewhat the economic impact of
the then-existing rules on all regulated sources and thus on small
entities that might be, or own, regulated sources. For example, by
requiring compliance on a source, rather than a unit, basis, the
revisions reduced the potential for excess emissions penalties due to
an inadvertent error, e.g., in the owner's distribution of allowances
among the units at a source that would cause one unit to have more than
enough allowances to cover emissions and another unit to not have
enough allowances to cover emission. As a further example, the
revisions removed some requirements (e.g., the required submission of
an annual compliance certification report) and thereby removed some
costs of compliance for all regulated sources.
We continue to be interested in the potential impacts of the
proposed rule on small entities and welcome comments on issues related
to such impacts.
D. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures to State, local, and tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any
one year. Before promulgating an EPA rule for which a written statement
is needed, section 205 of the UMRA generally requires EPA to identify
and consider a reasonable number of regulatory alternatives and adopt
the least costly, most cost effective or least burdensome alternative
that achieves the objectives of the rule. The provisions of section 205
do not apply when they are inconsistent with applicable law. Moreover,
section 205 allows EPA to adopt an alternative other than the least
costly, most cost-effective, or least burdensome alternative if the
Administrator publishes with the final rule an explanation why that
alternative was not adopted. Before EPA establishes any regulatory
requirements that may significantly or uniquely affect small
governments, including tribal governments, it must have developed under
section 203 of the UMRA a small government agency plan. The plan must
provide for notifying potentially affected small governments, enabling
officials of affected small governments to have meaningful and timely
input in the development of EPA regulatory proposals with significant
Federal intergovernmental mandates, and informing, educating, and
advising small governments on compliance with the regulatory
requirements.
This rule does not change the existing Acid Rain Program rules and
therefore does not result in any additional expenditures to State,
local, and tribal governments or to the private sector. The rule simply
proposes to reaffirm the promulgation of Acid Rain Program rule
revisions that were previously issued and that are still in effect and
have been since mid-2006. Moreover, the effect of these revisions when
they were first promulgated was, if anything, to reduce somewhat the
expenditures of State, local, and tribal governments and the private
sector under the then-existing Acid Rain Program rules. For the same
reasons, EPA has determined that this rule contains no regulatory
requirements that might significantly or uniquely affect small
governments.
E. Executive Order 13132: Federalism
Executive Order 13132, entitled ``Federalism'' (64 FR 43255 (Aug.
10, 1999)), requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive Order to include regulations that have ``substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.''
This rule does not have federalism implications. It will not have
substantial direct effects on the States, on the relationship between
the national government and the States, or on the distribution of power
and responsibilities among the various levels of government, as
specified in Executive Order 13132. This rule simply proposes to
reaffirm the promulgation of Acid Rain Program rule revisions that
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were previously issued and that are still in effect and have been since
mid-2006. Moreover, when first promulgated, these revisions did not
have substantial direct effects on States, the relationship between the
national government and the States, or the distribution of power and
responsibilities. Thus, Executive Order 13132 does not apply to this
rule.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
Executive Order 13175, entitled ``Consultation and Coordination
With Indian Tribal Governments'' (65 FR 67249 (Nov. 9, 2000)), requires
EPA to develop an accountable process to ensure ``meaningful and timely
input by tribal officials in the development of regulatory policies
that have tribal implications.'' This rule does not have tribal
implications, as specified in Executive Order 13175. This rule simply
proposes to reaffirm the promulgation of Acid Rain Program rule
revisions that were previously issued and that are still in effect and
have been since mid-2006. Moreover, when first promulgated, these
revisions did not have substantial direct effects on tribal
governments, on the relationship between the Federal government and
Indian tribes, or on the distribution of power and responsibilities
between the Federal government and Indian tribes. Thus, Executive Order
13175 does not apply to this rule.
G. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks
Executive Order 13045, entitled ``Protection of Children From
Environmental Health Risks and Safety Risks'' (62 FR 19885 (Apr. 23,
1997)), applies to any rule that: (1) Is determined to be
``economically significant'' as defined under Executive Order 12866,
and (2) concerns an environmental health or safety risk that EPA has
reason to believe may have a disproportionate effect on children. If
the regulatory action meets both criteria, the Agency must evaluate the
environmental health or safety effects of the planned rule on children,
and explain why the planned regulation is preferable to other
potentially effective and reasonably feasible alternatives considered
by the Agency. EPA interprets Executive Order 13045 as applying only to
those regulatory actions that are based on health or safety risks, such
that the analysis required under section 5-501 of the Executive Order
has the potential to influence the regulation.
This rule is not subject to the Executive Order because it is not a
significant regulatory action under Executive Order 12866 and is not
based on health or safety risks. This rule simply proposes to reaffirm
the promulgation of Acid Rain Program rule revisions that were
previously issued and that are still in effect and have been since mid-
2006. Moreover, when first promulgated, these revisions implemented
certain requirements of the Acid Rain Program that were not on based on
health or safety risks.
H. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use
This rule is not subject to Executive Order 13211, entitled
``Actions Concerning Regulations That Significantly Affect Energy
Supply, Distribution, or Use'' (66 FR 28355 (May 22, 2001)), because it
is not a significant regulatory action under Executive Order 12866.
I. National Technology Transfer Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272
note), directs EPA to use voluntary consensus standards in its
regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (e.g., materials specifications, test methods,
sampling procedures, and business practices) that are developed or
adopted by voluntary consensus standards bodies. The NTTAA directs EPA
to provide Congress, through OMB, explanations when the Agency decides
not to use available and applicable voluntary consensus standards. This
rule simply proposes to reaffirm the promulgation of Acid Rain Program
rule revisions that were previously issued and that are still in effect
and have been since mid-2006. Moreover, when first promulgated, these
revisions did not address the use of any technical standards. Thus,
this rule is not subject to the NTTAA.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
Executive Order 12898 (59 FR 7629 (Feb. 16, 1994)) establishes
federal executive policy on environmental justice. Its main provision
directs federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission
by identifying and addressing, as appropriate, disproportionately high
and adverse human health or environmental effects of their programs,
policies, and activities on minority populations and low-income
populations in the United States. EPA has determined that this rule
will not have disproportionately high and adverse human health or
environmental effects on minority or low-income populations because it
does not change the level of protection provided to human health or the
environment, but simply proposes to reaffirm the promulgation of Acid
Rain Program rule revisions that were previously issued and that are
still in effect and have been since mid-2006. Moreover, when first
promulgated, these revisions did not change the level of protection
provided to human health or the environment.
List of Subjects in 40 CFR Parts 72, 73, 74, 77, and 78
Environmental protection, Acid rain, Administrative practice and
procedure, Air pollution control, Electric utilities, Intergovernmental
relations, Reporting and recordkeeping requirements, Sulfur oxides.
Dated: December 5, 2008.
Stephen L. Johnson,
Administrator.
[FR Doc. E8-29386 Filed 12-12-08; 8:45 am]
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